Cebu resident subpoenaed over 'cyber-libelous' YouTube post

MANILA, Philippines - A Cebu resident has been subpoenaed to answer a complaint filed against him by a neighbor for violating Republic Act 10175, or the Cybercrime Prevention Act - which is under a temporary restraining order from the Supreme Court - for a video he posted on YouTube.

The video, "Crazy, Violent and Insane Neighbor Harassing our Family," was posted on September 21 by Jose Farrugia under the username "techdron" and shows an encounter with Bernardo Zamora, whom he says is a relative.

In the video, Zamora confronts a woman, Farrugia’s mother Mary Ann, and complains about their canal.

Farrugia, who is behind the camera, tells Zamora to “shut up” several times. The video ends with Zamora telling Farrugia not to take pictures and striking the camera.

Farrugia said he had decided to accompany his mother with a video camera to record Zamora’s “harassment,” which he said had been going on for months.

“This wasn’t the first time I confronted him with a camera,” said Farrugia in a note accompanying the YouTube post. “It’s the third time. He somehow gets agitated and frustrated whenever he sees a camera recording his violent actions and (badgering) statements.”

Within a month of the post, the Cebu City prosecutor’s office issued Farrugia and his parents a subpoena based on Zamora’s complaint for violation of the Cybercrime Prevention Act.

Aware that the controversial law is under a Supreme Court TRO effective until January, Farrugia asked on his Twitter account @wiredmash: “How can I receive a subpoena in reference to Article 10175, (when) in fact, that law has been suspended?”

And in an email to InterAksyon.com, he said: “We now question the judicial system we have here. Aren’t the city prosecutors up to date with the law?”

In her own email, Mary Ann said, “The speed in the issuance and delivery of the subpoena, unmindful that there currently exists a TRO on the Cybercrime Law, leaves me (in) wonder and awe.”

Mary Ann also raised concerns earlier raised by critics about the Cybercrime Law’s implications for freedom of expression, especially since libel committed through the use of a computer is included among the punishable offenses under the statute.

She said the fact a subpoena was issued citing the new law was “a clear example of the consequence of the enactment of Cybercrime Law: a curtailment of the basic human right, freedom of expression. After all, the subject of the video is not a government official and truth is never an offense, but a by-product of an expression, in this case, online.”

She added that her son’s video “was never distributed to Internet users like spam mails (are). It was posted online, people come online, and (post) comments online. It was meant to be a discussion. What was wrong with that? The video is a record of what happens in our life. It is our story. Why are we being asked to explain to the Court a sample episode in our life shown online?”

Interviewed by phone, Zamora, 74, told InterAksyon.com that he had consulted his lawyers about the video and they agreed the YouTube post was libelous.

“It is libelous because they make (it seem) that I am insane. You cannot (just) say that I am insane. (The title reads) ‘crazy, insane.’ You cannot call any person (that), especially if it will be publicized. You put somebody in shame,” he said.

“There are some who protest (against the Cybercrime Law),” he said. “The Internet is not exempt from putting bad words against anybody. I’m not crazy. I’m not insane.”

He acknowledged the TRO against the Cybercrime Law and said this is why the case remained pending.

However, TV5 legal analyst Atty. Mel Sta. Maria, who was sought for comment on the case, said the TRO issued by the high court “is clear.”

“The TRO did not merely enjoin the enforcement of particular selected provisions but it stopped the enforcement of the law in its totality as a whole” by, among others, “the ‘Secretary of Justice,’ ‘the Department of Justice,’ and ‘all agencies and instrumentalities of government and all persons acting under their instructions, orders, and directions,” including prosecutors, he stressed.

Sta. Maria authored one of the 15 petitions filed against the Cybercrime Law.

The lawyer said because of the TRO, “no preliminary investigation can proceed alleging libel under the Cybercrime Law. The persons required to enforce it are restrained from enforcing it and this would include the filing of cases or even the investigation of cases under the Cybercrime Law.”

“It would appear therefore the issuance of a subpoena and even the commencement of a preliminary injunction are improper and in violation of the TRO,” he added.

He also pointed out that there are still no implementing rules and regulations on how the Cybercrime Law should be implemented.